dressing the change in circumstances created by the new amendment, since the original pleadings attacked a statute no longer in effect. Second, the FCC claimed that the plaintiffs' challenge to section 399's prohibition of support for, or opposition to, any candidate for political office should be dismissed because plaintiff Pacifica (and the other plaintiffs derivatively through Pacifica) had failed to plead that it actually wanted to support or oppose such candidates and would do so but for the provisions of secton 399. The FCC explained:

Under new Section 399 only those non-commercial educational broadcasting stations which receive grants from the Corporation for Public Broadcasting are prohibited from editorializing. In contrast, no noncommercial educational broadcasting station may support or oppose any candidate for political office, without regard to whether it receives a grant from the Corporation. The application of different standards of conduct to different classes of broadcasters suggests that judicial scrutiny of each provision await a challenge by a party aggrieved by the implementation of that provision. [Defendant's Supplemental Memorandum on Amendment of Section 399, September 15, 1981, at 4] Finally, the FCC argued that the new section did not violate the First or Fifth Amendments. The Commission reasoned that: (1) the legislative history of the section evidenced a compelling governmental interest to assure that noncommercial educational broadcasters receiving grants from the Corporation for Public Broadcasting not be coerced, by the fact of Federal funding, to broadcast editorials favorable to the government; (2) the concern that noncommercial educational broadcasters receiving Corporation funding not be coerced by the fact of Federal funding to adopt editorial positions favored by the administration and Congress constituted a compelling governmental interest justifying enactment of the statute; and (3) the section represented an "appropriate and narrowly tailored remedy" to the threat that sustained Federal funding of noncommercial broadcasters would have a coercive effect on their editorial policy. [Id. at 18]

The FCC summarized its position as follows:

The amendment to Section 399 to limit the prohibition against editorializing to those noncommercial educational radio and television stations that receive grants from the Corporation for Public Broadcasting mandates repleading of plaintiffs' amended complaint. In any event, Section 399's prohibition against editorializing continues to reflect a Congressional judgment that the nurturing of communication, education and debate through creation and sustenance of a comprehensive system of noncommercial educational radio and television requires concomitant safeguards to assure that the massive infusion of governmental funds neither coerces editorial positions nor skews debate in favor of the recipients of government funding.

Such a determination constitutes a proper Congressional regulation of the unique medium of public broadcasting

and does not violate the First or Fifth Amendments. [Id. at
26-27]

On September 23, 1981, the plaintiffs filed a second reply memorandum in support of their motion for summary judgment, arguing that: (1) an amended complaint was not necessary; (2) all the plaintiffs had standing to challenge section 399 in its entirety (since the section's language "directly and explicitly" suppressed Pacifica's freedom of speech and denied the League and Rep. Waxman access to opinions and editorials of noncommercial broadcasters); and (3) the new section violated the First and Fifth Amendments. On the last point the plaintiffs dismissed the Government's reasoning as without foundation:

There are clearly several crucial links of faith in the chain of reasoning underlying this purported justification for § 399. In order to accept the government's argument, one must assume: (1) that noncommercial broadcasting stations are so dependent on CPB appropriations that they would do nothing that could possibly jeopardize CPB funding; (2) that noncommercial licensees believe that Congress would retaliate against editorials that are critical of government policies by reducing or eliminating funding to all CPB broadcasters; and (3) that noncommercial stations would react to this perceived fear of Congressional revenge by continuously taking editorial positions in favor of the government.

Yet defendant makes no showing (nor was there any demonstration made before Congress at the time of § 399's enactment) that any of these assumptions are founded upon "the practical empirical evidence of prior practice" that defendant itself acknowledges is required by Supreme Court precedent. See Defendant's Supplemental Memorandum, at 13. Given the diverse and pluralistic nature of the hundreds of broadcasting stations receiving CPB funds, as well as the shortcomings and bluntness of using the CPB appropriation as either a "carrot" or a "stick" in influencing individual licensee's editorial decisions, the government's asserted interest not only is far from "compelling, but passes from "speculative" to "improbable." [Plaintiffs' Second Reply Memorandum . . ., September 23, 1981, at 10-12 (footnotes omitted)]

On October 2, 1981, the plaintiffs filed a second amended complaint seeking to invalidate, and enjoin enforcement of, the prohibition against editorializing contained in the new section 399, again on First and Fifth Amendment grounds. The complaint specifically alleged that plaintiff Pacifica "would broadcast its views on various important public issues, and would clearly label those views as being editorials broadcast on behalf of Pacifica managment" were it not for section 399. [Second Amended Complaint For Declaratory and Injunctive Relief, October 2, 1981, ¶ 6] The other plaintiffs were also alleged to have suffered specific injury because of section 399. [Id., ¶s 4,5]

On October 13, 1981, the defendant FCC filed a memorandum in support of dismissal of the second amended complaint, asserting identical grounds to those contained in the opposition to the plaintiffs' motion for summary judgment. Accordingly, the FCC merely referenced the defendant's previous memoranda of July 22, 1981 (see supra, page 342), and September 15, 1981 (see supra, page 343). On October 26, 1981, the plaintiffs filed a memorandum in opposition to the defendant's motion to dismiss, which was premised on grounds identical to those submitted in support of their motion for summary judgment. Accordingly, the plaintiffs relied on their previous memoranda of August 28, 1981 (see supra, page 343), and September 23, 1981 (see supra, page 344).

On November 9, 1981, oral argument was held on the defendant's motion to dismiss the second amended complaint and the plaintiffs' motion for summary judgment. Judge Lucas took both motions under submission.

Status-The case is pending in the U.S. District Court for the Central District of California, although the Senate's participation has been concluded. As of March 1, 1982, Judge Lucas had not handed down a decision on the pending cross-motions.

The complete text of the March 11, 1980 order of the district. court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

The complete text of the June 18, 1981 order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

IX. Attempts To Obtain Congressional Documents and Testimony Through Use of the Subpoena

1. Civil Proceedings:

United States v. Eilberg

[See page 129.]

In Re: IBP Confidential Business Documents Litigation

M.D.L. No. 428 (N.D. Iowa)

On December 4, 1980, Nicholas Wultich, a staff investigator for the Committee on Small Business of the U.S. House of Representatives; Charles Chatman, former counsel to the Subcommittee on Oversight of the Committee on Interstate and Foreign Commerce of the House; and John M. Fitzgibbons, former Special Counsel to the Small Business Committee on Interstate and Foreign Commerce were each served with nearly identical_subpoenas duces tecum issued by the U.S. District Court for the District of Columbia. The subpoenas called for the staff members to appear and testify at a deposition and to bring with them all documents in their possession or custody relating in any manner to Iowa Beef Processors, Inc. ("IBP") or Hughes A. Bagley.1 The subpoenas were issued upon the application of counsel for IBP and called for the appearance of the deponents at a Washington, D.C. law office on Decem

1 Mr. Bagley was a former vice-president of IBP who allegedly transferred confidential documents belonging to IBP to Congressional investigators in 1975.

97-581 0 - 82 - 23

ber 15 and 16, 1980. (The subpoenas were issued as part of a civil suit being litigated in the U.S. District Court for the District of Iowa.)

On December 12, 1980, the staff members submitted a motion in the Iowa court to stay enforcement of the subpoenas until February 1, 1981. They asserted that in order to adequately evaluate the constitutional issues raised by the subpoenas-involving the independence of Congress and the ability of its committees to fulfill their constitutional functions-a stay was essential.

Messrs. Wultich, Chatman and Fitzgibbons stated that pursuant to Rule 45(d) of the Federal Rules of Civil Procedure they had served IBP with a written objection to the inspection or copying of any documents covered by the subpoenas. Under that rule, said the deponents, IBP was not entitled to inspect or copy the materials except pursuant to a court order. The staff members claimed that such inspection and copying were outside the scope of permissible discovery because the materials were the direct product of their employment with the House of Representatives. They contended that both the documentary material and their personal knowledge and recollections of IBP and Mr. Bagley were privileged from discovery by the Speech or Debate Clause 2 and the policy of legislative independence:

The [Speech or Debate] clause has been read "broadly to effectuate its purposes." Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501 (1975). It has been read to afford absolute protection from questioning legislative aides such as those subpoenaed here on matters within the legislative sphere, and "the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch." Eastland, supra, at 502503. See also Gravel v. United States, 408 U.S. 606 (1972), Doe v. McMillan, 412 U.S. 306 (1973).

Committee investigatory activity is clearly within the proper sphere of the Article I functions devolved on Congress and is a necessary function of the Congress, McGrain v. Daugherty, 273 U.S. 135 (1927), and the gathering of information for legislative purposes is protected by the Speech or Debate Clause. Eastland v. United States Servicemen's Fund, supra. [Congressional Deponents Motion for Temporary Stay of Subpoena for Deposition, December 12, 1980, at 3]

The staff members concluded that the subpoenas raised serious questions regarding the permissible scope of judicially compelled inquiry into the internal workings of Congress. Preparation for adequately briefing these constitutional questions, they said, was hampered by the expiration of the 96th Congress and the formation of the 97th, as well as by House Resolution 722 which required in

2 The Speech or Debate Clause of the United States Constitution provides that "for any Speech or Debate in either House [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]

ternal notification and consultative procedures prior to complying with the subpoenas.

On December 12, 1980, the U.S. District Court for the Northern District of Iowa ordered a stay of the depositions. The deponents and the parties to the underlying litigation were required to submit memoranda on the legality of the subpoenas by February 2, 1981.

On February 2, 1981, the staff members submitted a motion to quash and an accompanying memorandum. In the memorandum, the deponents argued, first, that the Speech or Debate Clause protected aides, as well as Members, if the conduct of the aide would be immune from scrutiny if performed by the Member. Second, the staff members argued that the prohibition against questioning legislative acts was absolute and could not be overcome, even by a showing of compelling need. Third, they argued that the Speech or Debate Clause had been held to protect information gathering activities by Members and aides because such activity was essential to legislating.

Turning to the facts of the present case, the staff members claimed that the subpoenas should be quashed because all three staff members had been engaged in sensitive information gathering activities; their knowledge of IBP and Hughes A. Bagley was exclusively a product of their performance of legislative duties assigned to them by Members of Congress. Any documents in their possession, said the staff members, were papers of the House and its committees.

Finally, the staff members asserted that the subpoenas were an attempt by IBP to use the process of the court to inquire into the official, non-public files and functions of Congress. They maintained that there appeared to be no conceivable question which IBP could ask them which would fall outside the legislative sphere, since the staff members sole and exclusive contact with IBP was through the committees' investigations.

On February 18, 1981, IBP filed a memorandum in opposition to the motion to quash. In this memorandum IBP outlined why it deemed the requested depositions important and why the Speech or Debate Clause would not preclude the depositions from being held. First, IBP asserted that in July 1979, Mr. Bagley testified before a subcommittee of the House Small Business Committee concerning events which occurred during his employment with IBP during the early 1970's. In August 1979, IBP sent a letter to Rep. Neal Smith, Chairman of the Small Business Committee, in which it informed him of its belief that portions of Mr. Bagley's testimony were not true. In October 1979, Mr. Bagley filed suit against IBP, claiming that IPB's letter to Chairman Smith was defamatory. IBP then counterclaimed, asserting that Mr. Bagley had defamed IBP before the subcommittee. The depositions, argued IBP, were essential to the defamation litigation because the staff members on several occasions met with Mr. Bagley to discuss his anticipated testimony before the subcommittee, and to receive from him copies of documents which he took from IBP. IBP concluded its discussion of these factual allegations by asserting that under Gravel v. United States, 408 U.S. 606 (1972), Members and their aides are not immune if they conspire to violate the rights of private parties.